Battle Over Free Online Research

Here’s the kicker; searching and printing from Jurisline is entirely free. Jurisline’s business model generates some revenue from advertising, but it focuses more on partnerships with publishers of printed research sources. For example, running the search phrase "copyright & Internet" through Jurisline may generate a list of applicable cases, plus a secondary list of books and newsletters for sale that discuss online copyright issues. Although Jurisline co-founder Ken Chow refers to the business model as a "value-added community," I just like to call it "free."

There are two ways to build a database of legal opinions: (1) train monkeys to sort through volumes of printed matter and input each word; or (2) get opinions and statutes on CD-ROM and hit the button marked "download." Jurisline picked Option Number 2. Most of the cases and statutes available at Jurisline were plucked from Lexis CD-ROMs.

Under Copyright Law, copying court cases is acceptable because there's no copyright in the courts' opinions–the opinions are in "the public domain." Anyone can copy, quote, or tinker with the courts' words with abandon. Feist Publications, a recent Supreme Court case, establishes Jurisline's right to recreate Lexis’ database of court opinions. Feist involved a printer of telephone directories that tried to stop other printers from blatantly copying his directory. The Supreme Court dismissed the printer's copyright claims, holding that there can be no copyright of facts (i.e., names and numbers) or in the logical organization of facts (i.e., alphabetical order). The printer argued that the collection of the names required a great deal of time and cost a bundle–the "sweat of the brow" theory of protection. But the Supreme Court specifically rejected this theory under the facts presented. In short, expense and work won't get you copyright protection; only original expression is protected.

Feist was almost overruled by legislation in 1998: a near-final version of the Digital Millennium Copyright Act granted protection to databases. But the provision was pulled at the eleventh hour. Expect Congress to revisit the issue, but Feist remains the law in the U.S. for now. Under Feist, as long as Jurisline only plucked opinions and not editorial content added by Lexis, they don't run afoul of copyright. Since the organization of cases by jurisdiction and numerical order is logical, Lexis can claim no copyright in their arrangement. Just to be sure there was no debate, Jurisline filed a declaratory judgment action in New York federal court last December to establish its right to copy the cases.

Lexis, of course, is familiar with the limitations of copyright law, as it relied on this same "public domain" argument when it ripped cases from Westlaw’s books in the early 80s. (Westlaw sued, and the parties settled in 1988. Under the terms of settlement, Lexis agreed to pay West $3 million per year.) But Lexis opted to use database building option number 1: monkeys and keyboards. Jurisline, remember, got the cases from a Lexis CD-ROM–a CD-ROM that came with a form licensing contract. To paraphrase the contract, the license prohibits extracting cases and posting them on the Web. So, even though Lexis has no copyright claims, it can still pursue the breach of contract claims against Jurisline. And that is exactly what Lexis relied on when it filed suit against Jurisline in New York state court.

Jurisline removed the case to federal court, arguing that the state law claims were pre-empted by federal copyright law. In April, the federal court in New York sent Lexis’ state law claims back to state court, essentially finding that the state claims were not preempted. Although counsel for Lexis describes the ruling as "near fatal," his opposing counsel isn’t giving up that easily. Jurisline attorney Ted Normand pointed out that the remand ruling was a jurisdictional, rather than substantive, decision on the preemption issue. Also, Mr. Normand noted that Jurisline added antitrust claims against Lexis to its declaratory judgment suit, and it expected those claims to remain viable.